After Bernard and Marshall.

• Author: McCallum, Margaret E.
• Position: Canada - Special Forum: Perspectives on R. v. Marshall; R. v. Bernard

As good historians and good storytellers know, the starting and ending points for one's narrative may determine whether one has a comedy, a tragedy, or a farce. For the Crown, the Bernard case began on 29 May 1998, when Joshua Bernard was arrested, his tractor trailer seized, and the logs he was hauling confiscated. For Bernard, and for the Mi'kmaq woodsworkers involved in the Marshall case in Nova Scotia, the events that brought them to court began much earlier, with the arrival of Europeans in what had, until then, been Mi'kmaq territory. The arrival of Europeans made new questions relevant--questions about sovereignty, jurisdiction and ownership of land and resources. In trying to work out answers to these questions today, we are faced with inconsistent claims about the basis of rights to land and resources in what is now Canada.

Rights of the non-aboriginal population in Canada are generally derived from Crown grants, either of fee simple estates, or of licences or leases or other kinds of permission to harvest resources on Crown land or in waters over which the Crown claims jurisdiction. The Crown's authority to make such grants, at least in parts of the country not covered by land surrender treaties, derives from the British claim to have acquired sovereignty in what became British North America on the basis of discovery and settlement, or, in some places, conquest of the earlier French colonizers. But at international law, claims to sovereignty based on discovery and settlement were possible only if the land were a terra nullius, an uninhabited land, with no prior occupants, or occupied by peoples who were so uncivilized that the colonizers could ignore their claims. Bruce Ryder calls the British claim to sovereignty based on discovery as the "ugly fiction" woven into the fabric of Canadian law. (1) Nonetheless, aboriginal peoples in Atlantic Canada claim rights that may predate the acquisition of British sovereignty: rights recognized in treaties signed by representatives of the British Crown and the Mi'kmaq, Maliseet and Passamaquoddy while Britain and France were fighting over who would rule in what became British North America; rights to aboriginal title derived from these peoples' occupation of the land, and other aboriginal rights derived from activities that were integral to the distinctive culture of the aboriginal peoples now claiming the right prior to their ancestors' contact with the European colonizers.

The papers in this section of the University of New Brunswick Law Journal explore some of the problems inherent in acting as if there were no conflict between the idea of Crown sovereignty and aboriginal or treaty rights. This section is a response to the decision of the Supreme Court of Canada in July 2005 in R. v. Mars'hall; R v. Bernard, (2) disposing of appeals in two separate cases, one from Nova Scotia and one from New Brunswick, on the rights of aboriginal peoples to engage in commercial logging on Crown land without the authorization required by provincial regulations. In both cases, the Mi'kmaq accused argued that they were acting pursuant to a treaty right to harvest wood in order to earn a moderate livelihood, and pursuant to the rights inherent in the aboriginal title that they claimed over the territory encompassing the cutting sites. The cases were quite different in terms of the scale of the logging involved, and the extent of the territory over which the accused asserted aboriginal title. In both, however, the Supreme Court rejected the defence based on treaty rights and the defence based on aboriginal title. The Supreme Court returned to these questions in the spring of 2006, in hearing arguments in two New Brunswick cases dealing with aboriginal or treaty rights to harvest wood for personal use?

In Bernard, the trial judge heard expert testimony from three non-aboriginal university-based historians, a Mi'kmaq expert in the language, culture, oral history and traditions of the aboriginal people of eastern North America, and a non-aboriginal professional forester. The accused, a 19-year old Mi'kmaq, was a registered status Indian from the Eel Ground Reserve, on the Miramichi river system. He was charged with unlawful possession of 23 spruce logs that he was hauling from a single cutting site, working in partnership with family members. The Bernard family believed, following the decisions in the Provincial Court and the Court of Queen's Bench in Peter Paul, that they had a legal right to participate in the commercial harvest of wood from Crown land. Bernard's lather said that he and his sons had stopped cutting when the New Brunswick Court of Appeal overturned the lower court decision in Peter Paul, and were simply cleaning up their site as directed by the provincial government when Joshua Bernard was arrested. (4)

The site where the Bernard family worked was on the Little Sevogle River, the first significant tributary on the Northwest Miramichi River. Although there was no archaeological evidence of a pre-sovereignty Mi'kmaq presence on the cutting site itself, the defence offered uncontradicted expert evidence that the Sevogle area was part of traditional Mi'kmaq territory and that the Mi'kmaq used the entire watershed, "as part of their subsistence quest and traditional way of life." The defence also offered uncontradicted evidence that the Mi'kmaq, Maliseet, and Passamaquoddy each lived peaceably in their defined territory along different river systems, and each respected the other's boundaries. The "occasional visitors" in the Mi'kmaq territory were there with the permission of those who occupied the territory, and thus their presence confirmed the group's control over the territory. (5)

In Marshall, 35 Mi'kmaq, all registered status Indians, were charged with cutting timber on Crown lands without authorization, at multiple cutting sites spread across mainland Nova Scotia and Cape Breton Island. The sites varied in size from one hectare up to several hectares, and the amount cut ranged from a few cords to tractor trailer loads of wood. All but two of the accused were members of Indian bands, or related to Indians, whose reserves were close to where they were cutting. The defence of aboriginal title focussed not on proving title to specific cutting sites but on proving aboriginal title to the whole of Nova Scotia, including Cape Breton. The expert witnesses for the defence and the Crown agreed that at the time of contact, Nova Scotia was "occupied" by the Mi'kmaq, even though they were not everywhere throughout the whole area. The experts agreed, too, that the Mi'kmaq spent much of their time on the coast or on rivers near it, moving seasonally depending on the availability of resources. (6)

In both Marshall and Bernard, the parties proceeded on the assumption that the appropriate date for establishing proof of aboriginal title was the date of establishment of British sovereignty, a term that encompasses either the assertion or the acquisition of sovereignty. The Supreme Court adopted the following dates: for what is now mainland Nova Scotia, 1713, the date of the Treaty of Utrecht; for what is now Cape Breton, 1763, the date of the Treaty of Paris; and for what is now New Brunswick, 1759, the date of the fall of Quebec. (7) In all three Maritime provinces, the date for establishing the practices necessary to support a claim of aboriginal rights other than title is presumably the date of contact with the French, not with the British, but as the accused did not offer a defence based on an aboriginal right other than title, the court did not address that question.

The treaty right asserted by the accused in their defence was based on the same treaties at issue in the earlier Marshall case, in which the Supreme Court accepted that Donald Marshall, a Mi'kmaq, could assert a treaty right as a defence to a charge of catching and selling eels in violation of federal fishery regulations. As John McEvoy explains in his contribution to this issue, this Marshall decision affirmed the continued validity of rights contained in Treaties of Peace and Friendship made in 1760-61 between the British and First Nations in what is now New Brunswick, Nova Scotia and Prince Edward Island. In entering into these treaties, the British hoped to secure, if not the allegiance of the aboriginal peoples, at least their neutrality in Britain's war with France. The Supreme Court ruled that the treaty right to trade for...